Re: CRS REPORT 7-5700 (RL32528)
Stephen P. Mulligan, Legislative
Attorney,
Congressional Research Service
Thank you very much for
your excellent REPORT above (also attached).
We fully intend to study it in
detail, and to quote it where relevant,
in support of the following:
Please note that Douglas M. Harpool failed to rule
either way
on our proper and timely MOTION
filed and served in November 2014:
There was no opposition from any
named Cross-Defendants either.
The fundamental issue -- that we
still seek to litigate formally --
is this question which remains without
judicially enforceable answers:
Can the "not
self-executing" Declaration appended to ICCPR ratification
be enforced as
domestic U.S. law without violating the Petition Clause
(Congress shall make
no law abridging the right to petition government)
in the First
Amendment and without violating the Bicameralism Clause
(U.S. House of
Representatives never voted on it)?
At a bare minimum, the Act of
Congress at 28 U.S.C. 2201
should suffice for purposes of
judging said ICCPR Declaration
either constitutional or
unconstitutional:
Is the latter statute not an
"effective remedy" for violations of the ICCPR,
as required by ICCPR Article
2? If not, why not?
We submit to you that the latter
Article 2 is also supreme Law of the Land
throughout the USA ipso facto,
notwithstanding the "not self-executing" Declaration.
Cf. your Footnote 37 in
particular, quoting:
37 Compare, e.g., Henkin, supra note 36, at 346 (describing
non-self-execution RUDs as “against the spirit of the Constitution” because
“[t]he Framers intended that a treaty should
become law ipso facto, when the treaty is made; it should not require
legislative implementation to convert it into United States law”);
and Malvina Halberstam, Alvarez-Machain II: The
Supreme Court’s Reliance on the Non-Self-Executing Declaration In the
Senate Resolution Giving Advice and Consent to the International Covenant
on Civil and Political Rights, 1 J. NAT’L SECURITY L. & POL’Y 89, 95
(2005) (“[A] declaration that a treaty (or
treaty provision) that by its terms would be self-executing is not
self-executing, is inconsistent with the language, history, and purpose of
Article VI of the U.S. Constitution.”)
with Bradley & Goldsmith, supra note 27, at 446 (arguing that the
Constitution does not prohibit the Senate from defining the domestic scope
and applicability of a treaty through the use of non-self-execution RUDs). [emphasis
added]
The latter quote from Bradley
& Goldsmith also appears to contradict
the Bicameralism Clause by "defining
the domestic scope and
applicability of a treaty" but withOUT satisfying the
clear requirement
already defined at 1 U.S.C. 101: the U.S. House of
Representatives
must approve all Acts of
Congress!
Furthermore, our MOTION above
found several other Acts of Congress
that do confer jurisdiction on
Federal Courts to adjudicate matters
that arise under the
Constitution, Laws and Treaties of the United States,
notably the Habeas Corpus
statute at 28 U.S.C. 2241:
(3) He is in
custody in violation of the
Constitution or laws or treaties of the United
States;
... and Federal question at 28
U.S.C. 1331:
all civil actions
arising under the
Constitution, laws, or treaties of the United
States
The latter statutes clearly
honor the Arising Under Clause
at Article III, Section 2,
Clause 1 in the U.S. Constitution;
as such, the matters now at hand
exhibit fundamental
constitutional significance in
the USA:
Section 2. The judicial Power shall extend to all Cases, in Law
and Equity, arising under this Constitution, the Laws of the
United States, and Treaties made, or which shall be made, under
their Authority; ....
We did not find in your excellent REPORT any mention of
the relevant scholarly work by Judge Thomas Buergenthal,
specifically where he cites that same Arising Under Clause.
We have now archived his work on that key point here:
Perhaps a future Update could address all of Buergenthal's relevant objections,
at a minimum by confronting the obvious conflict that
occurs between
the "not self-executing" Declaration and that
Arising Under Clause.
Thank you again for your excellent scholarly
contribution
to this ongoing debate about U.S. international treaties,
particularly the International Covenant on Civil and
Political Rights
as previously ratified by the U.S. Senate in 1992 with
Reservations, Understandings and Declarations
("RUD")
appended unilaterally without consent or approval by
any other
State Parties to that Covenant.
Cc: Hannah Rose, UK lawyer for the Peoples of the
UK proprio motu
--
Sincerely yours,
/s/ Paul Andrew Mitchell, B.A., M.S.
Private Attorney General, Civil RICO: 18 U.S.C. 1964;
Agent of the United States as Qui Tam
Relator (4X),
Federal Civil False Claims Act: 31 U.S.C.
3729 et seq.